Housing Authority of City of Atlanta v. Southern Ry. Co., 57421

• Decision Date: 22 June 1979
• Docket Number: No. 57421,57421
• Citation: 256 S.E.2d 606,150 Ga.App. 4
• Parties: HOUSING AUTHORITY OF the CITY OF ATLANTA v. SOUTHERN RAILWAY COMPANY et al.
• Court: Georgia Court of Appeals

Page 606

256 S.E.2d 606

150 Ga.App. 4

HOUSING AUTHORITY OF the CITY OF ATLANTA v. SOUTHERN RAILWAY COMPANY et al.

No. 57421.

Court of Appeals of Georgia.

Argued March 12, 1979.

Decided April 24, 1979.

Rehearing Denied May 14, 1979.

Certiorari Granted June 22, 1979.

Charles M. Kidd, John A. Pickens, Woodrow W. Vaughan, Jr., Atlanta, for appellant.

Greene, Buckley, DeRieux & Jones, Thomas B. Branch, III, Burke O. Archer, Eileen Crowley, Atlanta, for appellees.

BIRDSONG, Judge.

Condemnation proceedings. The Housing Authority of the City of Atlanta, Georgia, appellant, condemned the property upon which the Candler warehouse was located. One of the many property owners affected thereby was the Southern Railway System, representing several railway companies. The Southern R. Co. owned the main line rail running immediately adjacent to the warehouse facility. Southern also had the exclusive right to move all freight cars from the main line adjacent to the facility onto the Candler warehouse property and onto the trunk or spur lines that serviced each of the warehouse bays for the numerous tenants of the warehouse company. Southern earned fees for its switching service. The special master appointed to determine the just and adequate compensation due each affected property owner determined that Southern would suffer approximately $35-40,000 damages by being required to remove its tracks located upon the warehouse property. The special master denied Southern any damages for relocation costs or for lost profits. Southern being dissatisfied with the recommended award of the special master took an appeal to the superior court and demanded a jury trial. Upon the jury trial, the jury awarded Southern $37,733 moving costs, $30,247 relocation costs, $132,500 for loss of profits, and found that the appellee Southern was entitled to attorney fees and costs of litigation. The trial court after hearing evidence on attorney costs and costs of litigation awarded Southern attorney fees in the amount of $63,697.97. This together with the jury verdict, was made the judgment of the court. The Housing Authority has brought this appeal complaining principally of the award for lost profits and attorney fees. Held :

1. Appellant Atlanta Housing Authority urges a series of errors in support of its contention that lost profits was not a proper subject for damages. Included in its enumerations of error are the denials of motions for new trial, judgment nov, directed verdict, and numerous charges of the court dealing with lost profits and uniqueness of the property to the condemnee so as to entitle the condemnee to seek lost profits. Each of these enumerations either has or lacks validity depending on whether Southern was entitled to recover lost profits as a matter of law.

We conclude that the recent decision of this court in Dept. of Transp. v. Kendricks, 148 Ga.App. 242, 250 S.E.2d 854 is dispositive of this issue. In that case, we held, at p. 244, 250 S.E.2d at p. 857: " ' . . . in this state, under our constitutional requirement that the condemnee be paid "just and adequate compensation" before his property is taken, the question which properly addresses itself to the jury's consideration . . . is not "What has the taker gained?", but "What has the owner lost?", and that where there are separate interests to be condemned, the jury, in arriving at just and adequate compensation, is not only authorized but required to consider the value which the thing taken has to the respective owners of the interests being condemned. If just and adequate compensation to the owners of the various interests in the land being condemned requires that the total compensation exceed the value of the land, this presents no difficulty because, under Bowers (Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884), . . . and under the constitutional requirement mentioned, the jury is not only required to render a verdict for . . . condemnees for the value of the land taken, but also from whatever damages result to the condemnees from the condemnation proceeding.' "

We are persuaded by the contentions and evidence presented by Southern, that Southern was seeking damages for a total loss of its business derived from its switching operations at the Candler warehouse. Southern's evidence showed that as of the date of the taking by Atlanta Housing it would be required to remove its 6,000 feet of track; it would incur well defined expenses in relocating the same amount of track footage, and that over a period of 25 years (the expected life of the warehouse), it would lose profits that were clearly established by a multiple year experience factor of continuous profits. The evidence further showed that these profits might fluctuate but that a definitive range had been established over the past several years. The jury was given a range of a low of $109,000 to a high of $495,000 as the expected loss of business profits over the extended period. The jury's finding of $132,500 was well within the range of that evidence. We are further satisfied that Southern established clearly that its property rights in the Candler warehouse location were unique to Southern, both in location and operation. Under the holding of Dept. of Transp. v. Kendricks, supra, Southern was entitled to recover for lost profits where there was ample evidence to show that Southern suffered a business loss (whether partial or total), that the business was unique to Southern, and the profits were shown not to be remote or speculative. It follows that the trial court did not err in denying the motions for judgment nov, for a new trial, or for a directed verdict, nor did the court err in charging upon the issue of lost profits or uniqueness of the property to Southern. We reject the argument advanced by appellant that Southern had been successful in reclaiming the business of some of its displaced customers at the Candler warehouse (and hoped to regain it all) by serving those customers in new locations and therefore, Southern had in reality suffered no business loss, and thus no loss of profits. This argument ignores the fact that this reclaimed business was new business at new locations (even if with old customers) and that Southern had indeed irrevocably lost business from its customers at the warehouse site. The first seven enumerations of error are without merit.

2. In considering the second major area of enumerated error by Atlanta Housing, we are...